AI Drafter 
TaxTMI 
TaxTMI 
2018 (7) TMI 778
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....declaration dt. 21.09.2004 filed on 22.09.2004 in the Division office, Shimla exercised their option for availing exemption under Notification No. 50/2003-CE dt. 10.06.2003 w.e.f. 12.05.2004. The preventive staff of Central Excise division, Shimla visited the factory premises of the appellants on 18.09.2004. At the time of visit, Sh. Munish Kumar Saini, Head of the Lighting Division of the appellants in his statement admitted that since 12.05.2004 onwards, they have been manufacturing CFLs for their own firm under the brand name ECOLITE and also for M/s Surya Roshni Ltd under the brand name SURYA at plot no. 9. As per the facts on record, it was found that the appellants have entered into a Rent Agreement with M/s Leader Food Area, Parwanoo on 08.04.2004 for taking this premises on rent @Rs.16,500/- per month from 10.04.2004 for a period of three years. From a perusal of resumed attendance register of plot no. 9, it was revealed that the appellants commenced the attendance register w.e.f. May 2004 with the strength of 27 workers in May 2004, 33 workers in June 2004, 31 workers in July 2004, 66 workers in August 2004 and 64 workers in September 2004. Thus, Revenue took the view that....
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....- 2017-TIOL-4388-CESTAT-CHD. He relied on the judgment of this Tribunal in the case of Indica Industries Pvt Ltd vs. CCE, Dehradun - 2017 (357) ELT 961 (Tri. Delhi). Ld. Advocate also drew attention to the chart submitted to the department wherein the production at plot no. 12 and plot no. 9 has been separately shown and claimed that there was no simultaneous availment of exemption for both the units. He further argued that the extended period was not applicable as they had declared the production and availment of notification in their ER-1 returns filed at the time and shifting of machinery to new unit was known to the Department. 4. Ld. AR submits that the declaration was filed on 21.09.2004 only after the Central Excise Officers visited the unit. He argued that returns were filed not in respect of the unit at plot no. 9 but were filed for the unit at plot no. 12 and the EPF status shows that the workers were registered only for plot no. 9 from the impugned period. He also relied on the case law of CCE, Surat-I vs. Neminath Fabrics - 2010 (256) ELT 389 (Guj.) to argue that the concept of the knowledge did not exist in the proviso to Section 11A(1). He also invited attention to....
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.... that it is not the case of the department that the party was located in a non-notified khasra or manufacturing product in the negative list or that they have not commenced the production before the cut of date of 31-3-2010. These are admitted facts. The only reason for denial of the exemption to the appellant is that they have not filed the declaration as stipulated in the notification for availing such exemption. The original authority held that though Notification No. 50/2003-C.E. did not contain such condition initially the same was inserted vide Notification No. 76/2003-C.E., dated 5-11-2003. The original authority held that the condition of filing declaration with details is mandatory and in the absence of that the exemption shall not be available. 6. We have perused the condition as reproduced above. The details as required to be filed in the option were all available in the letter dated 15-3-2010 seen in the appeal records. The said letter was in connection with registration of the Unit No. III under Rule 9 of Central Excise Rules, 2002. The registration as sought for has been given by the department on 19-3-2010. However, we note that the appellant indicated in the said....
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.... mistakes." 6.4 We also find that the issue of nature of declaration was also decided by this Tribunal in the case of M/s Forging Machinery Manufacturing Company (supra). In that case, the issue was examined to the context of Notification No. 9/2003-CE dt. 01.03.2003, wherein the assessee was required to file their declaration, similar in nature to the Notification No. 50/2003-CE before first clearances. In the majority judgment, after there was a difference of opinion between two members of the Division Bench, it was held as under: "23. It may not be out of place here to observe that for claiming the benefit of any notification which is subject to fulfilment of conditions enumerated therein, such conditions are required to be fulfilled by the assessee. However, there can be different kinds of conditions, specified under particular enactment. Whereas some conditions are substantial conditions, upon which extending of that benefit is available, there can be procedural requirement. Hon'ble Supreme Court in the case of Sambhaji vs. Gangabai-2009 (240) ELT 161 (SC) discussed the issue of substantial condition vis-a-vis procedural conditions at length. It stands observed by Hon'bl....